HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
AND
HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
Writ Appeal No.574 of 2023
JUDGMENT: (Per Hon'ble Sri Justice U. Durga Prasad Rao)
Although succeeded in the W.P.No.9137/2021, the 5th
respondent therein filed the instant intra court writ appeal under
Clause 15 of letters patents for the sole reason that learned Single Judge while disposing of the writ petition given liberty to the writ petitioner to file revision petition under Section 9 of Andhra Pradesh Rights in Land and Pattadar Pass Book Act, 1971 (in short 'the Act 1971')
2. Heard learned counsel for appellant Sri Sreenivasa Rao Velivela, Sri S.V.Muni Reddy, learned counsel for 1 st respondent and learned Government Pleader for Revenue for the official respondents 2 to 5.
3. The bone of contention between the 1st respondent/writ petitioner and appellant/5th respondent is in respect of Ac.4.90 cents in Sy.No.2367 of Brammankraka Village, Nellore District. On the application of 1st respondent/writ petitioner, the Tahsildar, ::2::
Jaladanki Mandal/5th respondent conducted enquiry and issued proceedings in RCB No.252/19 dated 08.02.2019 holding that the 1st respondent/writ petitioner has purchased the said land under registered sale deed and has been in possession of the said land.
4. Aggrieved, the appellant/5th respondent filed appeal under Section 5(5) of the Act 1971 before the Revenue Divisional Officer, Kavali/4th respondent. The said authority taking into consideration the facts that in O.S.No.473/2005 filed by the 1st respondent/writ petitioner against the appellant/5 th respondent seeking perpetual injunction in respect of the subject land, learned Principal Junior Civil Judge, Kavali held that the plaintiff was not in possession and dismissed the suit and also considering the fact that at the time of Inams settlement i.e., during the year 1981 names of present appellant and his brother are reflected in the Fair Land Register (FLR) came to conclusion that the present 1st respondent/writ petitioner is in possession of Ac.0.16 cents only in Sy.No.2367 but the Tahsildar, Jaladanki Mandal/5 th respondent has issued order dated 08.02.2019 in RCB No.252/19 wrongly.
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5. Aggrieved by the said order the 1st respondent/writ petitioner field W.P.No.9137/2021. After hearing both parties learned Single Judge confirmed the order of the R.D.O., Kavali. During the course of hearing, learned counsel for writ petitioner sought permission of the learned Single Judge to file statutory revision before the concerned Joint Collector under Section 9 of the Act 1971 and therefore learned Single Judge while disposing of the writ petition given liberty to the writ petitioner to file revision under Section 9 of the Act 1971. Challenging such conferment of liberty to the writ petitioner, 5th respondent in the writ petition filed the present writ appeal.
6. Learned counsel for appellant Sri Sreenivasa Rao Velivela would strenuously argue that learned Single Judge having agreed with the finding of the R.D.O., that the appellant's name has been consistently recording in the FLR in respect of the disputed land of Ac.4.90 cents in Sy.No.2367, ought not to have accorded liberty to the writ petitioner to file revision before the Joint Collector, inasmuch as, such liberty would tantamount to conferring power on ::4::
the Joint Collector to review the order of the learned Single Judge which is not permissible under law.
7. Per contra, learned counsel for respondent No.1/writ petitioner Sri S.V.Muni Reddy supported the order of the R.D.O., and argued, since revision is a statutory facilitation under Section 9 of the Act 1971, learned Single Judge gave liberty to the writ petitioner to file the revision. Thus, in essence the revision that is being carried out by the writ petitioner is against the order of the R.D.O., but not against the order of learned Single Judge. He thus, prayed to dismiss the writ appeal.
8. We find force in the contention of the appellant/5th respondent. Learned Single Judge while examining the correctness of the order of R.D.O., Kavali/4th respondent herein made following observations:
"11. In the present case, the Revenue Divisional Officer has observed in the order that there are trappings of civil dispute in between the petitioner and the 5th respondent and it can only be decided by the competent Civil Court. Basing upon the FLR, and judgment & decree in O.S. No.473 of 2005 the name of the 5th respondent herein was directed to be recorded as enjoyer in the revenue records. And as held by Hon'ble Supreme Court in Sri Bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi & others referring to the extracts from the Resettlement Register and the entries in a document which is called a 'Zeroyati Patta', ::5::
and the rough patta and the fair patta in which the name of Archakahas has been entered observing that the long course of entries which were consistently in favour of the Archakas cannot be ignored in preference to the entries in favour of the temple for a solitary year. As per the said judgment the long course of entries which were consistently in favour of the person who entered in, has to be given credence.
12. In the present case, the name of the 5th respondent is found in the FLR since the year 1990, for the last thirty years. Therefore, the petitioner cannot contend that the name of the 5th respondent has entered falsely in the FLR. The order of the then Tahsildar is contrary to the judgment in O.S.No.473 of 2005. The competent Civil Court has found that the petitioner is not in the possession of the property and disbelieved the registered sale deed. And against the dismissal of the suit no appeal has been preferred by the writ petitioner herein. The title of the 5th respondent can be traced from the finding of the judgment and decree in A.S. No.632 and 1382 of 1981 and the petitioner herein was not able to establish his right by filing any relevant document. The document i.e. the registered sale deed was disbelieved by the court in O.S. No.473 of 2005, as such the Revenue Divisional Officer/3rd respondent has rightly set aside the order of the Tahsildar and directed to enter name of the 5th respondent as enjoyer and possessor in the revenue records, inter alia observed that there is tapping of civil dispute between the petitioner and 5th respondent herein and he cannot decide any title either to the petitioner or 5th respondent herein.
13. I found no flaw in the order of the 3rd respondent herein. Merely observing that an appeal is maintainable against an order of the Revenue Divisional Officer and the proceedings of the Revenue Divisional Officer will not vitiate which is impugned in the Writ Petition. And the RDO is the jurisdictional authority to entertain the appeal against the order of the Tahsildar and the RDO is not exceeded his jurisdiction or authority.
14. While exercising supervisory jurisdiction this court is not entitled to act as an appellate court. The findings or facts reached by the Revenue Divisional Officer are wholly on appreciation of evidence, which cannot be reopened or questioned in writ proceedings. An error of law which is apparently on the face of the record can be corrected by a Writ Court but not in a way of fact, however, it may appear to be. As the Order of the Revenue Divisional Officer it does not vitiate any law, hence, this court cannot sit as an appellate court over the order of the Revenue ::6::
Divisional Order and I found no reasons to interfere with the order impugned in the present writ petition."
9. As can be seen from the above observations, learned Single Judge agreed with the findings of the R.D.O., regarding the possession of the appellant/5th respondent basing on the documentary evidence and decree in O.S.No.473/2005 and held that there was no error of law in the order of the R.D.O., and hence there was no reason to interfere with his order. Thus, the learned Single Judge agreed with the findings of the R.D.O.
10. Be that as it may, it appears that on the request of the writ petitioner, the learned Single Judge ultimately passed the following order:
"15. The petitioner herein filed Writ Petition aggrieved by the proceedings made in Rc.A.653/2019, dated 25.03.2021 against which revision lies under Section 9 of the Andhra Pradesh Rights in Land and Pattadar Pass Book Act, 1971 before the Joint Collector/ Additional District Magistrate. Learned counsel for the petitioner would submit that basing on the observation made by the Revenue Divisional Officer in the impugned proceedings, the present Writ Petition came to be filed as no appeal lies to the CCA, hence, sought permission to file revision before the Joint Collector.
16. Accordingly, the Writ Petition is disposed of by giving liberty to the petitioner to file revision under Section 9 of the Andhra Pradesh Rights in Land and Pattadar Pass Book Act, 1971 in accordance with law and the respondents are directed to ::7::
maintain status-quo for a period of four weeks from today. However, no costs."
11. Learned Judge thus gave liberty to the writ petitioner to file revision under Section 9 of the Act 1971 before the Joint Collector. It should be noted that the order of the R.D.O., merged with the order of the learned Single Judge in W.P.No.9137/2021. In that view, as rightly argued by the learned counsel for appellant giving liberty to the 1st respondent/writ petitioner to file the revision before the Joint Collector would amount to conferring the power on the Joint Collector to review the order of the learned Single Judge, since by virtue of the doctrine of Merger, the order of the R.D.O., merged with the order of the learned Single Judge.
12. Doctrine of Merger is founded on the common law of principle that in respect of a lis there can be and there shall be only final judgment of highest hierarchy. This principle has been reiterated by Hon'ble Apex Court in the case of Kunhayammed ::8::
and others v. State of Kerala and others1. Considering its earlier judgments, the Apex Court held thus:
"12. The logic underlying the doctrine or merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - Whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below.
However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenged laid or which could have been laid shall have to be kept in view."
13. Viewing in that angle and in the factual matrix of the case, giving liberty to the writ petitioner to file revision is unwarranted and legally unsustainable. It should be noted that before hearing of the matter, had the writ petitioner sought for the leave and learned single Judge granted such liberty, it would have been a different story. Or otherwise even after recording his observations and agreeing with the findings of the RDO, still if the learned single 1 (2000) 6 SCC 359 ::9::
Judge on request of the petitioner granted liberty to file revision before the Joint Collector with a specific observation that the Joint Collector shall not be influenced by the observations of the learned single Judge while dealing with the revision, it would be a different matter. Neither is the situation in the instant case. In that view, we cannot agree with the liberty accorded by learned Single Judge in the reasons stated supra.
14. Accordingly the writ appeal is allowed and the order of the learned Single Judge insofar as granting liberty to the writ petitioner to file revision under Section 9 of the Act 1971 is set aside and as a consequence the writ petition is dismissed. No costs.
As a sequel, interlocutory applications, pending if any shall stand closed.
_________________________ U. DURGA PRASAD RAO, J ____________________________________ VENKATA JYOTHIRMAI PRATAPA, J 11.10.2023 NNN